dismissed L-1A Case: Timber Export

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. A3042 
Washington, DC 20529 
data ddetd €0 
prct9(wlansd 
U.S. Citizenship 
and Immigration 
4- (I -a1 P~W Services 
RlsLICcOPY 7 
FILE: LIN 04 174 52767 Office: NEBRASKA SERVICE CENTER Date: WV 0 7 
IN RE: Petitloner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1 101(a)(15)(L) 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
LIN 04 174 52767 
Page 2 
*. 
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner seeks to extend its authorization to employ its manager temporarily in the United States 
pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
tj 1101(a)(15)(L). The petitioner is a corporation organized in the State of Ohio that claims to be engaged in 
the sourcing, treatment, processing and export of raw timber. It claims to be a subsidiary of Chung Song 
Industry Co., located in Inchon, Korea. The beneficiary was initially granted L-IA classification m order to 
open a new office in the United States and the petitioner now seeks to extend his stay for a three-year period. , 
The director denied the petition concluding that the petitioner had not established that (I) the beneficiary 
would be employed in a managerial or executive capacity; or that (2) the U.S. company is "doing business" as 
the term is defined in the regulations at 8 C.F.R. 5 2 14.2(l)(ii)(H). 
On appeal, counsel for the petitioner asserts that the director erred in his decision and claims that the 
petitioner submitted sufficient evidence to establish that the beneficiary is employed in a managerial or 
executive capacity, and that the petitioner is doing business through the regular, systematic and continuous 
provision of goods and services as required by the regulations. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization and seeks to enter the United States temporarily in order to continue to render his 
or her services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 214.2(1)(3) states that an individual petition filed on Fonn 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies hider to perform the intended 
LIN 04 174 52767 
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services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 3 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The first issue in the present matter is whether the beneficiary will be employed by the United States entity in 
a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
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acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. fj 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction Erom higher level executives, the board 
of directors, or stockholders of the organization. 
The petition was submitted on May 28, 2004. In a May 18, 2004 letter, the petitioner indicated that the 
beneficiary performs the following duties as manager of the company: 
His job duties entail him to be responsible for the management of all business operations of 
the company, including the purchase and sale of finished veneer logs from saw mills to be 
ultimately used in furniture manufacturing or residential construction; establishment of 
branch offices; staffing; identification of sources for the purchase of lumber such as quality 
oak, hard maple, cherry, and walnut fi-om the eastern portion of the United States and quality 
soft maple from the western portion of the United States; conducting quality assurance 
examinations and tests of the various available products to select the appropriate sources, 
grades, quantities, and prices for purchase and shipment of quality wood products to the 
parent company; negotiation and execution of contracts and purchase orders for the purchase 
of quality timber; selection, cutting, and loading of the lumber; payment and shipment of the 
products to the Korean company; development and implementation of strategic marketing 
plans for the ongoing sourcing of quality timber products, and exploration of potential 
markets in the United States for the products of the Korean company for future export. In his 
employment, [the beneficiary] will have complete discretionary latitude in any necessary 
decision-making involved with the business with the ultimate goal to improve business 
operations and maximize revenues of the Korean and American companies. 
On June 3, 2004, the director issued a request for evidence instructing the petitioner to submit, in part: (1) a 
statement of the specific duties perfonned by the beneficiary for the previous year and the duties the 
beneficiary will perform under the extended petition, including the routine day-to-day tasks perfonned by the 
beneficiary as well as the percentage of weekly hours expended in the performance of each task identified; 
and (2) a statement describing the staffing of the company, including the number of employees, their job 
titles, their specific job duties, and evidence of wages paid to each employee. 
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In response, the petitioner submitted a June 22, 2004 letter, signed by the beneficiary, which restated the job 
description provided with the initial petition, and included two additional duties: procurement of export 
certificates from the U.S. Department of Agriculture, and supervision of employees and independent 
contractors. The beneficiary further described his duties as follows: 
Approximately 70% of my working time is dedicated to the identification of potential 
sources, negotiations for the purchase of lumber, and entering in final agreements. I visit 
many lumber mills around the country to examine their products. Another 5% of my working 
time is allocated to inspecting the lumber and conducting quality assurance tests. Another 
20% of my working time is spent on arranging for the loading and transportation of the 
lumber to the Korean parent company. Lastly, the remaining 5% of my working time is 
dedicated to administrative duties such as entering logistical data, making reports and filing 
applications to the AES and the U.S. Department of Agriculture to comply with American 
law regarding the export of lumber products. In order to obtain final approval for shipment, 
we must obtain a Certificate from the U.S. Department of Agriculture. 
Furthermore, I supervise our present staff of two employees and one independent contractor. 
Timothy Gates is our Dnver and Assistant. He is responsible for preparing the Log List for 
purchases and operating small life machinery. John Shetler is our Purchaser. He identifies 
appropriate lumber for purchase and assists in negotiations. His vast knowledge and 
experience with lumber is integral to the success of our company. He cuts the lumber 
utilizing horses and operates high lift and small lift machinery for shipment loading. William 
Shetler is an independent contractor who also identifies appropriate lumber for purchase. 
The petitioner submitted its IRS Form 941, Employer's Quarterly Federal Tax Return, and Ohio Form UCO- 
2QR, Employer's Report of Wages, for the first quarter of 2004, confirming employment of the beneficiary, 
the purchaser and the driverlassistant. 
The director denied the petition on June 30, 2004, determining that the petitioner had not established that the 
beneficiary will be employed in a managerial or executive capacity. The director noted that while the 
beneficiary has the authority to hire and fire employees and undertake other personnel actions, the petitioner 
failed to demonstrate that the beneficiary is supervising professional employees. The director also observed 
that the beneficiary exercises discretion over a function of the organization, but appears to be primarily 
performing rather than managing or directing the function. The director concluded that the beneficiary's 
duties would not be primarily managerial or executive. 
On appeal, counsel for the petitioner claims that the beneficiary qualifies under the statutory definition of 
"managerial capacity" based on his management of the entire organization and management of the "major 
function" of the organization, namely the sourcing, negotiating, purchasing and shipping of lumber products 
to the claimed parent company. 
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Counsel's assertions are not persuasive. When examining the executive or managerial capacity of the 
beneficiary, the AAO will look first to the petitioner's job description of the job duties. See 8 C.F.R. 
214.2(1)(3)(). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are in an executive or managerial capacity. Id. 
Based on the job description provided by the petitioner, it is evident that the beneficiary devotes the majority 
of his time to performing non-qualifying duties related to the identification, purchase and export of lumber on 
behalf of the company, rather than performing primarily managerial or executive duties. For example, the 
beneficiary states that he spends 20 percent of his time "arranging for the loading and transportation of lumber 
to the Korean parent company," 5 percent of his time "entering logistical data, making reports and filing 
applications to the AES and the U.S. Department of Agriculture," and 5 percent of his time "inspecting the 
lumber and conducting quality assurance tests." These duties, which constitute 30 percent of the beneficiary's 
time, have not been shown to be managerial or executive duties as contemplated by the statutory definitions. 
See section 101 (a)(44) of the Act. 
The beneficiary states that he devotes the remaining 70 percent of his time to the broad responsibility of 
"identification of potential sources of lumber, negotiations for the purchase of lumber, and entering into final 
agreements." While the beneficiary's responsibility for entering into final agreements may be considered 
managerial, the duties he performs to locate sources of lumber and negotiate routine purchase agreements are 
more akin to an employee performing the petitioner's routine operational tasks, and in fact overlap with the 
duties performed by one of the beneficiary's subordinates. Although requested by the director, the petitioner 
did not provide the percentage of weekly hours expended in the performance of each identified task, and 
therefore did not adequately distinguish between the beneficiary's qualifying and non-qualifying duties. The 
beneficiary's other claimed managerial duties, including personnel supervision, development and 
implementation of a strategic marketing plan, and exploration of potential markets, have not been adequately 
described and are not included in the breakdown of the beneficiary's weekly duties. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Cra$ of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Regardless, the petitioner's description of the 
beneficiary's duties depicts an employee who is directly involved in all of the day-to-day operations of the 
business. An employee who primarily performs the tasks necessary to produce. a product or to provide 
services is not considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must show that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 199 1). Where an individual is primarily performing the tasks necessary to 
produce a product or to provide a service, that individual cannot also primarily perform managerial or 
executive duties. In the instant matter, the petitioner has failed to show that non-qualifying duties will not 
constitute the majority of the beneficiary's time. Although counsel claims that the beneficiary manages the 
entire organization, the evidence does not support a conclusion that the beneficiary will be employed in a 
managerial or executive capacity for immigration purposes. The unsupported assertions of counsel do not 
LIN 04 174 52767 
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constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureuno, 19 I&N 
Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Rather, when 
determining whether a beneficiary is employed in a primarily managerial or executive capacity, the actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). It is evident from the record that any managerial 
duties performed by the beneficiary at the time of filing were incidental to his responsibility for providing the 
petitioner's service of sourcing, inspecting, purchasing, transporting and exporting lumber for the petitioner's 
parent company. 
Counsel claims that the beneficiary is a hnction manager and therefore qualified for an extension of his L-1A 
status. The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" within 
the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must provide a detailed job description that identifies the function with 
specificity, articulates the essential nature of the function, and establishes the proportion of the beneficiary's 
daily duties attributed to managing the essential function. 8 C.F.R. 4 214.2(1)(3)(ii). In addition, the 
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the 
function rather than performs the duties related to the function. An employee who primarily performs the 
tasks necessary to produce a product or to provide services is not considered to be employed in a managerial 
or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing 
Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this matter, while the 
beneficiary may exercise discretion over the petitioner's major function, the petitioner's description of his 
duties indicate that he also performs most of the administrative and operational duties associated with the 
function. 
Finally, as noted by the director, the beneficiary serves as a first-line supervisor of two employees, a 
driver/assistant who operates small lift machinery and prepares lists for purchases, and a purchaser, who 
identifies lumber for purchase, cuts lumber, and operates machinery for shipment loading. The petitioner also 
claims to employ an independent contractor, but has not provided documentary evidence of any payments to 
him. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. at 165. A managerial or executive 
employee must have authority over day-to-day operations beyond the level normally vested in a first-line 
supervisor, unless the supervised employees are professionals. See Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). In evaluating whether the beneficiary manages 
professional employees, the AAO must evaluate whether the subordinate positions require a baccalaureate 
degree as a minimum for entry into the field of endeavor. Section 101(a)(32) of the Act, 8 U.S.C. tj 
1101(a)(32), states: "The term profession shall include but not be limited to architects, engineers, lawyers, 
physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." 
The term "profession" contemplates knowledge or learning, not merely skill, of an advanced type in a given 
field gained by a prolonged course of specialized instruction and study of at least baccalaureate level, which is 
a realistic prerequisite to entry into the particular field of endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Comm. 
1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). The 
petitioner has not established that a bachelor's degree is necessary to perform the duties of a driver or 
LIN 04 174 52767 
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purchaser. Pursuant to section 101(a)(44)(A)(iv) of the Act, the beneficiary's position does not qualify as 
primarily managerial under the statutory definition. 
Finally, counsel notes that the petitioner's business had only been operational for a few months at the time the 
extension request was filed, but had achieved considerable success under the beneficiary's management 
within this short time period. The AAO notes that the initial new office petition (LIN 03 219 52391) was 
approved for a period of approximately nine months, from October 6, 2003 to June 30, 2004. If a beneficiary 
is coming to the United States to open a new office, the petition may be approved for a period "not to exceed 
one year." 8 C.F.R. § 214.2(1)(7)(i)(3). There is no indication in the current record of how much time the 
petitioner initially requested. Regardless, any request for an extension of a petition that was originally approved 
as a new office must be evaluated under the criteria set forth at 8 C.F.R. 5 214.2(1)(14)(ii). In the instant matter, 
the petitioner has not reached the point that it can employ the beneficiary in a predominantly managerial or 
executive position. For this reason, the appeal will be dismissed. 
The second issue in this proceeding is whether the petitioner is a qualifying organization doing business in the 
United States. Pursuant to the regulation at 8 C.F.R. 214.2(l)(ii)(G)(2) in order for an entity to be 
considered a qualifying organization, the petitioner must show that it: 
Is or will be doing business (engaging in international trade is not required) as an employer in 
the United States and at least one other country directly or through a parent, branch, affiliate, 
or subsidiary for the duration of the alien's stay in the United States as an intracompany 
transferee . . . . 
The regulation at 8 C.F.R. fj 214.2(l)(ii)(H) defines the term "doing business" as: 
[Tlhe regular, systematic, and continuous provision of goods andlor services by a qualifying 
organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad. 
The petitioner states that it sources and purchases raw timber and exports it to its claimed parent company in 
Korea. In support of the petition, the petitioner submitted: (1) its statement of revenues for the three months 
ended March 3 1, 2004, showing gross sales of $358,366; (2) recent bank statements; and (3) purchase orders, 
commercial invoices, bills of lading, and paclung lists for lumber purchased and sent to the parent company 
between December 2003 and April 2004. 
In his June 3, 2004 request for evidence, the director instructed the petitioner to submit further evidence that 
the United States entity has been doing business for the previous year. The director requested evidence of 
corporate tax returns and active contractual or sales agreements between the petitioner and specific 
clients/customers that clearly indicate that the petitioning organization has been providing identifiable goods 
and/or services. 
In response, the petitioner submitted its 2003 IRS Form 1120, U.S. Corporation Income Tax Return showing 
gross sales of $90,534; copies of business cards from over 30 lumber companies contacted by the petitloner in 
the course of doing business; copies of four phytosanitary certificates issued by the U.S. Department of 
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Agriculture in connection with shipments of lumber exported to Korea by the petitioner; and copies of recent 
bank statements, purchase orders, commercial invoices, packing lists and bills of lading. 
In his June 30, 2004 decision, the director acknowledged the evidence submitted by the petitioner but 
determined that the petitioner is not "doing business" as the term is defined at 8 C.F.R. § 214.2(l)(ii)(H). 
Specifically, the director concluded: "Instead of providing any goods and/or services, the petitioning entity 
appears to be simply acting as an "agent" or "administrative conduit" for arranging material transfers between 
U.S. suppliers and its parent organization abroad and therefore does not constitute a "qualifying 
organization.. . ." 
On appeal, counsel asserts that the petitioner submitted voluminous evidence of the petitioner's business 
activities, noting that the company expected to purchase and export over $1.4 million in lumber during its first 
twelve months of operations. Counsel asserts that this evidence was sufficient to establish that the petitioner 
has engaged in a "regular and systematic stream of transactions" and is clearly doing business in the United 
States. 
Upon review, the AAO concurs with counsel's arguments. The fact that the petitioner is engaged in 
purchasing and transporting raw materials to its parent company, or acting as a "conduit," should not be the 
determinative factor in deciding whether the company is doing business. A representative office is not 
specifically excluded by the definition of "doing business," provided that it shows that it is engaged in the 
provision of goods or services, albeit on behalf of a related foreign entity. The petitioner, to date, has been 
engaged in purchasing products from United States suppliers in order to export raw materials to Korea for use 
by the foreign entity. Although the foreign entity will actually manufacture the final product, the U.S. entity is 
engaged in the provision of services by facilitating the export of goods to the Korean market. Thus, under the 
business model adopted by the petitioner and its Korean parent company, the U.S. company would be deemed 
to be "doing business" pursuant to 8 C.F.R. tj 214.2(1)(l)(ii)(H). The director's comments with respect to this 
issue will therefore be withdrawn. 
Beyond the decision of the director, the record contains conflicting information regarding the petitioner's 
ownership which precludes a finding that the U.S. company maintains a qualifying relationship with the 
foreign entity pursuant to 8 C.F.R. 9 214.2(l)(ii)(G). On the Form 1-129, the petitioner indicated that it is the 
iary of the foreign entity, and that the foreign entity is wholly owned by an individual, 
The petitioner did not submit supporting documentation to substantiate the claimed 
, as required by 8 C.F.R. $ 214.2(1)(14)(ii)(A). Accordingly, the director instructed the 
petitioner to provide "specific evidence to establish that the United States firm and the foreign firm continue 
to be qualifying organizations" in his June 3, 2004 request for evidence. The petitioner did not submit any 
evidence in response to this request. The regulation states that the petitioner shall submit additional evidence 
as the director, in his or her discretion, may deem necessary. The purpose of the request for evidence is to 
elicit further information that clarifies whether eligibility for the benefit sought has been established, as of the 
time the petition is filed. See 8 C.F.R. $5 103.2(b)(8) and (12). The failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. tj 103.2(b)(14). 
Furthermore, the petitioner's 2003 Form 1120, U.S. Corporation Income Tax Return, at Schedule K indicates 
that the beneficiary owns 100 percent of the U.S. company. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
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inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitioner has not established that it 
maintains a qualifying relationship with the foreign entity. For this additional reason, the petition may not be 
approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the r 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.